The Joint Comprehensive Plan of Action (JCPOA) – the title of the nuclear agreement between Iran and six powers, among which the United States – presents a few obvious points have been missed in most news coverage of this plan of action.
First, the agreement is not a non-proliferation agreement. It is an agreement that approves limited proliferation of nuclear technology. This characterization means that the US and others states surrendered or abandoned their longstanding position of banning any Iranian nuclear program, peaceful or not.
It also is not a nuclear containment agreement. At most, it postpones some aspects of Iranian nuclear infrastructure development. In other areas, Iran can continue to develop and modernize to keep up with technology. At the end of 15 years at most, Iran has no more restrictions on its nuclear program, with the approval of the UN and the other powers, by implication.
This compromise of the longstanding programmatic ban for Iran is curious because that remains the US objective for North Korea. The US insists that North Korea, which already has nuclear weapons, must dismantle its nuclear program, not just its weapons program. That is the premise of the Six Party Talks.
The difference in the negotiating positions is even stranger because the Iranian and North Korean weapons programs appear to be essentially variants of the same program. The North Korean variant is more advanced. Nevertheless, North Korea has assisted Iran’s ballistic missile programs since the Iraq-Iran War. Iranians have been reported as observers at North Korean missile and nuclear tests. The cooperation continues as does the North Korean program.
The second point is that it is a very one-sided deal. It lacks mutuality. By an overwhelming margin the burden of performance is on the UN, the European Union and the US. Its economic implications far exceed its nuclear restrictions. From the Iranian viewpoint, the JCPOA is primarily an economic agreement.
In return for some reduction in the Iranian nuclear programs, the UN and the US will remove the entire architecture of sanctions imposed by any party on any Iranian party. In addition, they will allow Iran to buy and sell conventional weapons and they will help Iran get access to trade, technology, finance and energy. According to the text, this is one paragraph in which Iran “agreed” to the actions by the UN and the US.
One of the implications of this is that Iran stands to emerge quickly as a regional economic power. Using Germany as a model, that condition is far more enduring and consequential than a delayed nuclear program. Once Iran’s economy starts to rebound, it will be free from the threat of sanctions to ensure compliance. There is no credible enforcement mechanism.
A third point is that the text is a plan of action, as it is entitled. Significant by their absence in the text are the words “promise” and “agree” which are the cornerstones of enforceable agreements. The text uses the formulation that the parties “will” do things. Those could all be done independently or not. There is no bargain evident.
An enforceable agreement is an exchange of promises of performance. A plan of action implements those promises. The performance of one party is conditioned on the performance by the other party, by the language of the agreement. The terms of the JCPOA are independent.
This plan of action implements no agreement because no such document exists. An agreement can be implied from the language of the plan, but the language must establish a “meeting of the minds.”
Fourth, a strong argument can be made that there is “no meeting of the minds,” a classic term of contract law that is the basis for every agreement. The awkwardness of the structure makes clear that the intentions of the parties are not congruent and the goals are even farther apart.
Fifth, the JCPOA text contains no definition of terms, such as explanations for the various time terms. A plan of action requires some agreed definitions of terms. One plausible theory for a ten year time period, for example, is that Iranian strategists might have concluded that Iran faces no existential threat for at least a decade, as long as Iran did not provoke a regional nuclear arms race.
They also might have judged that after ten years Iran must be prepared for an even more uncertain strategic environment than the present. If this theory is accurate, Iran gave up little in return for a chance to be the regional economic hegemon. The emergence of an economically powerful Iran would alter strategic power relationships.
Finally, the six powers did not include a term requiring Iran to affirm or promise that it possesses or has access to no nuclear weapons now, in Iran or elsewhere. That seems to be a significant omission in crafting. If Iran already has nuclear weapons, the JCPOA would be a strategic victory for Iran.
Assuming Iran abides by the JCPOA to the letter, the JCPOA will empower Iran economically and that will shift the balance of power in the region, regardless of the nuclear program. The Iranians do well to celebrate.